Opening statements made in trial over abortion regulation

A hallway at the Whole Woman's Health clinic in Austin. The organization announced the clinic was shutting down Thursday, July 31.

On the first day of a trial over a new abortion regulation scheduled to take effect next month, attorneys for Texas abortion providers called witnesses who testified that the new requirement would leave low-income women in rural areas without reasonable access to abortion services.

The witnesses testified Monday after both sides made their opening arguments in a federal district court in Austin on the regulation, which would require abortion facilities to meet the same regulations as ambulatory surgical centers, or ASCs. The abortion providers claim that the measure, which was part of House Bill 2 and takes effect Sept. 1, will create an unconstitutional barrier for women seeking access to abortion. State attorneys say there isn’t evidence to show that the rules create an “undue burden” for the majority of women seeking abortion services.

In her opening statement, attorney Jan Soifer, who is representing the abortion providers, argued that the construction requirements implemented through the ASC provision do not increase safety standards. She said that they would instead “expose women to greater health risks” because the provision would reduce both the number and geographical distribution of abortion clinics.

Soifer said that the ASC provision would leave almost 1 million Texas women of reproductive age at least 150 miles away from an abortion clinic, and that such a lack of access to abortion services could lead to an increase in self-induced abortions.

State attorneys argued Monday that a federal appeals court had already held that driving 150 miles to an abortion provider is not an undue burden. Deputy Attorney General Jimmy Blacklock said during his opening statement that the law should be upheld because the Legislature had not been “motivated by an unconstitutional motive” when it passed the bill last summer.

With a majority of Texas women living within a three-hour drive of an abortion facility come September, Blacklock also indicated that abortion providers’ legal actions were motivated by their concerns of how the law would affect their businesses.

“The record will not show that they can’t comply with the law but that they won’t,” he said.

Witnesses who testified before U.S. District Judge Lee Yeakel on Monday included Illinois architect George Johannes, who has served as a consultant in the construction of several abortion facilities in other states.

Johaness estimated that construction costs to retrofit the shuttered Reproductive Services Clinic in El Paso, the largest facility Johannes studied, could reach $1.6 million in meeting ASC requirements. He said the costs are higher for smaller facilities like the Whole Woman’s Health clinic in Austin, which closed its doors last week. Johannes estimated that conversion at $2.4 million.

State attorneys challenged the figures he presented because they were based on construction costs in other states, but Johaness said the costs had been adjusted for Texas.

Attorneys for the abortion providers also brought in academics and medical experts who testified about the demand for abortion in rural areas and the challenges low-income women face in attempting to obtain an abortion, including transportation costs. To refute the state’s claims that abortion is riskier than providers acknowledge, other witnesses detailed figures to support that abortion mortality is drastically lower than maternal mortality.

Dr. Elizabeth Raymond, and OBGYN and senior medical associate at the Gynuity Health Projects, said data shows that the mortality rate associated with childbirth in Texas is 100 times the death rate associated with abortions.

The trial also touched on a request by abortion providers to exempt the Whole Woman’s Health McAllen clinic and Reproductive Services clinic in El Paso from a provision that requires doctors who perform abortions to obtain admitting privileges at hospitals within 30 miles of an abortion clinic.

The two clinics’ closures have been blamed on the provision after physicians were unable to obtain admitting privileges at nearby hospitals, leaving women who live south and west of San Antonio without a nearby abortion facility.

The state argued that women in El Paso could make the short trip to New Mexico to obtain the procedure and that women in the Rio Grande Valley were within reasonable driving distance to San Antonio.

The proceedings continue Tuesday morning with two more witnesses brought forth by the abortion providers’ attorneys. State attorneys will bring up their own witnesses to testify Wednesday afternoon, with the trial scheduled to last through Thursday.